New Department of Labor Rulings May Affect Winter Weather Policies

Kegler Brown E-mployment AlertNovember 28, 2005by Brendan Feheley

On November 9, 2005, the Department of Labor issued two opinion letters that clarify the Department's stance on winter weather policies as they affect exempt salaried employees. The opinion letters dealt with employer policies regarding compensation for (a) situations when the workplace remained open but employees could not make it to work due to inclement weather, and (b) situations when the workplace was forced to close as a result of the inclement weather.

The Department's view in situations where the workplace remains open is that the employer may deduct, for full day absences only, from the salary of an otherwise exempt employee who does not report for work due to adverse weather conditions. The employer can treat these absences as being for "personal reasons" under the regulations governing exempt employees. These deductions will not affect the exempt status of the employee.

If on the other hand, the employer is forced to close due to inclement weather, it is not permissible to deduct from the salary of exempt workers. This opinion is in line with 29 C.F.R. §541.602(a) which states in pertinent part:

An employee is not paid on a salary basis if deductions from the employee's predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business.

In a companion opinion letter, the Department advised that it is permissible for an employer to direct exempt staff to use vacation or leave without pay in situations where the employee does not come to work as a result of inclement weather, as well as situations where weather forces the workplace to close entirely. Unlike deductions from salaries, employers can require employees to use vacation time in any increments they would like. Therefore, if an otherwise exempt employee misses half of the workday as a result of weather the employer can direct that employee to use a half day of vacation.

As with all policies regarding leave, make sure the policies are written and communicated to the employees prior to taking any action.